Singh Pargat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 610/2021

[2023] HKCFI 435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 610 OF 2021

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D E C I S I O N

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INTRODUCTION

1.This is the Applicant’s application by summons filed on 5 December 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 3 June 2021 (the “Order”) refusing his application for leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 12 March 2021.

2.Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal the judge’s order to the Court of Appeal within 14 days after such order was made. By the time when the Summons was filed, the application is more than one year and five and half months out of time, which is very substantial in the context of a fourteen-day appeal period.

THE LAW

3.In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success in the intended appeal; and

(4)  prejudice to the respondent if extension was granted.

LENGTH OF DELAY AND REASONS FOR THE DELAY

4.The following is what happened in the processing of the Applicant’s Leave Application. He raised his Leave Application on 3 May 2021 while he was in custody in Castle Peak Bay Immigration Centre. As he was in custody, his application was processed expeditiously by this Court. A decision was reached on 3 June 2021. The Order and Form CALL-1 were sent to him care of Castle Peak Bay Immigration Centre. These were returned undelivered on 10 June 2021 marked “there is currently no such person in the centre”. The Applicant had been discharged. But, according to the court record, he had never informed the Court of his new address.

5.Upon receipt of his Summons, the Court noted that the Applicant had given no explanation for the delay in raising his appeal other than that he never received the Order and Form CALL-1. To assist him to make a proper application for leave, this Court gave him specific directions by letter dated 3 January 2023 to file a statement stating, inter alia, the date and circumstances under which the Order or information about the outcome of his Leave Application was received by him, all his residential addresses since 3 June 2021 and the date of his informing the Court of his change of address. In his three-page statement filed in response, he made various points which will be dealt with later, except addressing the above issues. His evasiveness only helped to confirm that he had never informed the Court of his change of address.

6.In Karamjit Singh[3], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

It is the Applicant’s duty to report his change of address to the Court. If he did not, he has to bear the consequence of his neglect. He has no reasonable explanation for the delay which was caused by his own neglect in failing to update the Court with his change of address.

GROUNDS OF APPEAL

7.In the Court’s letter dated 3 January 2023, the Applicant was also given directions to file his grounds of the proposed appeal. In his three-page statement file in response, after setting out his background, the purpose of his application and the procedural background, he made various un-particularized attacks on the Board’s Decision of procedural unfairness and/or irrationality. He made allegation of a “cherry-picking and biased and formula approach” in coming to the Decision, procedural unfairness and irrationality in assessment of his credibility, wholesale dismissing his evidence based on vague assertions of hearsay and speculation, etc. The thrust of his attacks are directed at the Board’s finding of fact.

8.It should be noted from paragraph 8 of the Form CALL-1 that the Board assessed the Applicant’s non-refoulement claims on the basis of the case as asserted by him. There could be no question about cherry picking evidence, wholesale dismissing his evidence and adverse finding on his credibility. It was based on his evidence that the Board found as a matter of fact and law that the Applicant was not entitled to protection under any of the four applicable grounds under the Unified Screening Mechanism. The Board’s assessment is summarized in paragraphs 9 to 14 of the Form CALL-1. There is no substance in these complaints. Besides, finding of fact is solely a matter within the province of the Board, which this Court in a judicial review will not intervene save for errors of law, procedural unfairness and irrationality in the Decision: see Nupur Mst v Director of Immigration[4].

9.As already mentioned in paragraph 15 of the Form CALL-1, the Applicant did not put forward any grounds of judicial review. As explained in paragraph 16 of the Form CALL-1, in the absence of any proper ground of application, the Leave Application had to be considered by this Court undergoing a rigorous examination of the Board’s Decision with anxious scrutiny for errors of law, procedural irregularity and irrationality in the Decision. For reasons as explained in that paragraph, this Court could not find any and, hence, refused his Leave Application.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

10.The Applicant has not advanced any grounds of his intended appeal. In effect, he is seeking to challenge this Court’s finding that the Board’s Decision has not been tainted by any of the above vitiating factors which is the sole ground for which this Court may review the Decision of the Board; but he has not provided any basis for challenging this Court’s decision. Thus, his intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

11.The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge which has no prospect of success to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing the application to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

ANONYMITY ORDER

12.The Applicant asked for an anonymity order but advanced no ground or argument. Hitherto, no such order had been made in respect of any stage of the proceedings. This Court could find no reason for making such an order and would not make such order.

CONCLUSION

13.The Applicant has no valid explanation for the very substantial delay. His intended appeal has no prospect of success. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, his application for extension of time to appeal is refused.

The Applicant is not represented